Judicial governance in Indonesia: Judicial independence under the One Roof System

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Tilburg University

Judicial governance in Indonesia

Rositawati, Dian

Publication date:

2019

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Link to publication in Tilburg University Research Portal

Citation for published version (APA):

Rositawati, D. (2019). Judicial governance in Indonesia: Judicial independence under the One Roof System.

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JUDICIAL GOVERNANCE

IN INDONESIA

Judicial Independence under the One Roof System

D I A N

R O S I TA W AT I

JUDICIAL GOVERNANCE

IN INDONESIA

DIAN ROSIT A W A TI

THE ONE ROOF SYSTEM, a judicial governance model in Indonesia, where

the Supreme Court holds the technical judicial authority and court administration authority, is considered rare among prevailing systems around the world. The idea of distancing courts from managerial issues by establishing a judicial council has been accepted as the solution in many countries around the world. However, it is clearly just the opposite in the Indonesian system, which has chosen to give the managerial function to the Supreme Court. Progress has been made since its implementation, but significant problems remain. This research aims to understand whether the one roof system has achieved its goal and what are the effects to the judiciary. It also presents the dilemmas around judicial governance to balance the principle of management and judicial independence.

Historical overview to trace back the idea of the one roof system since 1956, and interviews have been conducted to justices, judges, and high-ranking managers. The findings suggest that threats to the institutional independence of the judiciary by the government have been significantly reduced. However the centralization of power may eventually lead to possible infringements of the internal and core independence of judges from within the judiciary itself. Further, this system changes the landscape of the relationships between the executive, the legislature, and the judiciary. The institutional alienation as a result of greater autonomy of the judiciary from the government and parliament has resulted in a disconnect in the legislative and policymaking process.

The evaluation also reveals that the quality management approach can be used to solve the problems of internal accountability of the one roof system, however, the application of quality management is limited by the quality of the legal framework in the arrangements for the fundamentals of the organization. In a large organization like the Indonesian judiciary, with its diverse geographical and contextual challenges, change can be difficult to control.

D I A N R O S I TA W AT I is a researcher, and concentrates on issues related judicial

reform and legal reform for the past nineteen years. This book is a result of her PhD research at the Tilburg Law School, the Netherlands.

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JUDICIAL GOVERNANCE IN INDONESIA

Judicial Independence Under The One Roof System

Proefschrift ter verkrijging van de graad van doctor aan Tilburg University op gezag van de rector magnificus, prof. dr. K. Sijtsma, in het openbaar te verdedigen ten

overstaan van een door het college voor promoties aangewezen commissie in de Aula van de Universiteit op

maandag 16 december 2019 om 16.00 uur door

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Promotores : Prof. dr. L.H.J. (Maurice) Adams Prof. dr. M.A. (Marc) Loth Promotiecommissie : Prof. dr. Jimly Asshiddiqie

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Acknowledgment

Judicial reform in Indonesia has been a significant part of my life for more than 19 years. It is fascinating to see how the judiciary has changed from a very chaotic office at the early years of Reformasi, to a more organized one, from a very closed organization to a more open one. Having spent so much time working with the Supreme Court, I was able to witness the changing of the behavior of the organization and the people I work with. During my field research and interactions with the Supreme Court, the Judicial Commission and the Bappenas, I have met some great justices and judges, passionate leaders, as well as hard working staff, that willing to share their concerns and knowledge while hoping that this reform will somehow lead to a better future of the judiciary. This research might not be completed, if it’s not because their trust, openness and cooperation. I feel humble and thankful for being able to hear their first-hand experiences and to learn from it.

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Tilburg University in particular the Department of Private Law and the Department of Public Law, Jurisprudence and Legal History for the hospitality and support during my study.

I would like to express my sincere thank you the doctorate committees, Professor Jimly Asshiddiqie and Professor Topo Santoso from the University of Indonesia, and Doctor Kees Sterk the Vice President of the Raad voor de Rechtspraak (the Netherlands Council for the Judiciary). Their thorough comments and feedback on the manuscript have been enormously helpful to highlight the most important aspects for my further improvement in the future.

Next, I would like to thank the Indonesian Institute for Independent Judiciary (Lembaga Kajian dan Advokasi Independensi Peradilan, LeIP) where I’ve been working with for so many years. This is the place where I first started to get to know the judiciary and legal reform, back in 2000. Since then LeIP has been a home and a school where I learn and grow into who I am as a professional today. From this tiny organization, many great ideas have flowed and many of them have come true. For the long discussions and thousands of coffee cups, I would particularly like to mention Rifqi Assegaf, Arsil and Astriyani. Sincere thank you to each and everyone of the LeIP’s family for the laugh and the space, and apologies for not always have been around.

My sincere gratitude and respects to Sebastiaan Pompe and Greg Churchill, a great friends and respected mentors. I am fortunate to be able to learn from them, both on the substantive part and also on the professional part. They have opened the door of opportunities that let me where I am today. They are my source of inspirations and their examples have been instrumental in shaping my professional life.

I notably want to express my sincere thanks to Professor David Cohen. His understanding and kindness, to let me work with him while giving me space to my academic responsibilities have been a great help for me. His willingness to edit the manuscript during his visit to Jakarta and provide his point of views to the research from his professional standards has enormously helped me.

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and to Bang Fikri Assegaf for his kindness, trust and support. This dissertation would not be possible if not because of his helping hands.

This has been quite a journey, but a good company make the way seems shorter. I have to thank my late friend, Asep Rahmat Fajar. Without him, I may not have the courage to start this journey. You will forever be missed. Binziad Kadafi, for sharing the confusions and the joy, for going through the ups and downs. I might not have been here, at the end of this journey, if it were not because of them.

There are also many friends to thank along the way in Indonesia and the Netherlands: to Imam Nasima for the conversations and for being the family I needed when I’m in the Netherlands; to Professor Adriaan Bedner, Fachrizal Affandi, Feby Ivalerina and many good friends at the VVI, University of Leiden for the intellectual exercises; to friends at the Jentera School of Law; to Herni Sri Nurbayanti, Wiwiek Awiati, Judhi Kristantini, Sukma Violetta, Aria Suyudi, Nur Syarifah, Prahesti Pandanwangi, Windu Kisworo, Fifiek Mulyana, Yunani Abiyoso, Nisa Istiani, Dyah Wirastri, Rosewitha Irawati, Richo Wibowo and to so many people than possibly can be mentioned. They have been made this journey bearable and even fun.

Finally, I want to express my gratitude to my parents and my family who supported me throughout this dissertation and life in general. Special gratitude goes to my Mom, Wartini. She taught me how to read and opened up the window of the world, her prayers are my sources of strength. To my husband, my rock and my sense of logic, Haryanto. You give me wings, so I can fly. Your enormous support, your patient and understanding (especially when I’m away), your unexpected jokes, and your constant reminders keep me going through my hard and (mostly) good time. I owe it all to you. Thank you.

Dian Rositawati

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Abbreviations and Acronyms

Balitbangdiklatkumdil Badan Penelitian dan Pengembangan Pendidikan dan Pelatihan Hukum dan Peradilan, Research & Development and Education and Training of Law and Judiciary Agency

BAPPENAS Badan Perencanaan Pembangunan

Nasional, National Development Planning Agency

BAWAS Badan Pengawasan, Supervision Agency

BUA Badan Urusan Administrasi,

Administrative Affairs Agency

DG Direktorat Jenderal, Directorate General

Dirjen Badilag Direktorat Jenderal Badan

Peradilan Agama, Directorate General for Islamic Court

Dirjen Badilum Direktorat Jenderal Badan

Peradilan Umum, Directorate General for General Court

Dirjen Badimiltun Direktorat Jenderal Badan Peradilan

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DKH Dewan Kehormatan Hakim, Judge Honorary Assembly

Formahdep Forum Mahkamah Agung Departemen,

Supreme Court Department Forum

IKAHI Ikatan Hakim Indonesia,

Indonesian Judges Association

MA Mahkamah Agung, Supreme Court

MKH Majelis Kehormatan Hakim,

Judge Honorary Assembly

MPPH Majelis Penelitian dan Pertimbangan

Hakim, the Council of Judge’s Research and Consideration

MPR Majelis Permusyawaratan Rakyat,

People’s Consultative Assembly

PERBA Peraturan Bersama, Joint Regulation

PERMA Peraturan Mahkamah Agung,

Supreme Court Regulation

Pusdiklat Menpim Pusat Pendidikan dan Pelatihan

Manajemen dan Kepemimpinan, Center for Management and Leadership Training

Pusdiklat Teknis Pusat Pendidikan dan Pelatihan

Teknis, Center for Judicial Training

Puslitbang Pusat Penelitian dan Pengembangan,

Center for Research and Development

SE Surat Edaran, Circular Letter

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IIn 1999, the Indonesian judiciary underwent significant change by transferring the authority for judicial administration from the government to the Supreme Court (Mahkamah Agung), in what is known as the “one roof system.” The term one roof system reflects the integration of the technical judicial authority and court administration authority into the judiciary, in this case, the Supreme Court. The system was promoted to strengthen the independence of the judiciary against the domination of the government, which for more than 30 years had abused the power of court administration to manage personnel and budgets, to interfere with the judiciary.

1 Lawrence B. Mohr, “Organization, Decision and Court,” Law & Society Review 10 (1976): 621–42; Hector Fix-Fierro, Courts, Justice and Efficiency: A Socio-Legal Study of Economic Rationality in Adjudication (Oxford and Portland, Oregon: Hart Publishing, 2003).

2 Mahkamah Agung Republik Indonesia. Blueprint for Supreme Court Reform, 2nd printing. Jakarta: Mahkamah Agung Republik Indonesia, 2004, 1.

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Similar to the development of the judiciary in other parts of the world, at least two perspectives characterize the establishment of the one roof system in Indonesia. These are the judicial independence perspective, which is motivated by strengthening the independence of the judiciary against executive intervention, in particular; and the management perspective, which is concerned with the realization of better governance of the judiciary, which in the end was intended to provide better services to the public. The one roof system had consequences for the Indonesian judiciary, in that the Supreme Court became responsible for the administration of the budgets and personnel for all courts, despite conducting its function as the highest court of the land. Following its transfer from the government to the Supreme Court, the organization of the court administration function shifted from a simple, classic organization centered around judges, to a complex, large-scale organization with hierarchical coordination and division of labor.

Some experts argue that the independence of the judiciary has

had a positive influence on its performance,4_{among other things,}

because the level of autonomy to control and manage courts makes it easier for a court to achieve its objectives. The original idea of the Indonesian one roof system, as reflected in the history of its establishment and in the legal framework, was to realize the independence of the judiciary by safeguarding it from external intervention, particularly from the government. By realizing the centralization of power in the hands of the Supreme Court, the legal frameworks also brought about the importance of an accountability mechanism, by introducing the Judicial Commission. However, 17 years after its enactment there has still been no comprehensive review or evaluation of how the one roof system is implemented, what has

been successful, and what are its challenges.5

4 Daniel Berkowitz and Karen Clay, “The Effect of Judicial Independence on Courts: Evidence from the American States”, Journal of Legal Studies 35 (2006): 399–440.

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The one roof system can be considered a form of institutional independence, where the Supreme Court is given court administration authority as a way to prevent intervention from the executive. A judicial governance system such as the one roof system is rarely found in legal systems around the world. The decision of lawmakers to grant the Indonesian Supreme Court the authority to manage judicial administration, rather than to place it under a certain organization dedicated to administering the management aspects of the judiciary, such as a judicial commission or council for the judiciary, is unique. Although there is a clear connection between individual independence and a better quality of court decisions, there has been little research that connects institutional independence with

performance.6

Progress has been made since the implementation of the one roof system, but significant problems remain. Court facilities have improved, the level of transparency has increased—particularly with regard to access to court decisions—and the use of information technology in case management has been adopted. Court budgets have increased significantly in comparison with the situation before the one roof system. Although there has been a significant increase in the total budget obtained by the Supreme Court, many courts still suffer from budgetary insufficiencies. Further, public trust in the judiciary remains low and judicial corruption remains entrenched.

Based on the above background, this research aims to investigate two issues:

1. The goal of the introduction of the one roof system was to strengthen the independence of the judiciary, primarily the

from Latin America. Working Papers, Rule of Law Series, Democracy and Rule of Law Project, Carnegie Endowment for International Peace, 2002, 32; Stefan Voigt and Nora El-Bialy, “Identifying the Determinants of Judicial Performance: Taxpayer’s Money Well Spent?” European Journal of Law Economics 42 (2016): 183–208, DOI 10.1007/s10657-016-9531-6.

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independence of the judiciary vis-à-vis the government. The research questions are: Did it achieve this goal? What effects did it have?

2. The governance of a judiciary aims to strike a balance between the rule of law and managerial standards. The research questions are: Did the implementation of the one roof system succeed in striking that balance? If not, in what way is there room for improvement?

The scope of this research is limited to the organization of the Supreme Court in implementing the function of court administration under the one roof system. Generally, court administration consists of the administration of judges, the administration of budgets, and the organizational arrangements for conducting these functions. Therefore, the scope of this research encompasses those issues. Clearer guidance on aspects of court administration functions, and how they are operationalized in this study, is provided in Chapter 2. Further, because the research aims to evaluate and assess the implementation of the one roof system within the Supreme Court, careful consideration is required when examining elements within the judicial organization, since some elements may not be a consequence of implementation of the one roof system.

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1.2 The Relevance of the Research

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rule of law doctrine and the management doctrine. Most research and writings on the judiciary in Indonesia take a legal or political perspective. Further, from the particular theme of the one roof system, an academic study thoroughly evaluating the implementation of the system has never been conducted. Since the establishment of the one roof system in 1999, which began effectively functioning in 2004, there has been no comprehensive research to evaluate the implementation, success, and challenges of this system.

There is a substantial literature on the judiciary and judicial organization in Indonesia. However, two main sources of references are generally acknowledged by Indonesian and international scholars as the point of departure for the study of the Indonesian judiciary. Sebastiaan Pompe in his dissertation elaborates in depth and comprehensively about the organizational transformation and political dynamics of the Supreme Court from the early stage of Indonesian independence in 1945 until a few years before the

Reformation in 1998.7_{His dissertation provides an understanding}

not only of the legal dimensions of court organization, but also of the political dimensions, including in-depth analysis of the court's institutional behavior and the elements that determine such behavior.

8_{Moreover, Pompe provides a historical background to the struggles}

and efforts to implement the one roof system, including detailed information on the context, actors, and their interactions, which is valuable in research on the current implementation of the one roof system. As part of his research, Pompe tracked the original idea of the one roof system from 1947 to the beginning of the reform era. His research is valuable in providing a timeline for the transformation of judicial organization before the reforms began in 1998, and context for the development of the idea of the one roof system. From the point

7 Sebastiaan Pompe, “The Indonesian Supreme Court: Fifty Years of Judicial Development,” (PhD diss., Leiden University, 1996).

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of view of a study on judicial organization in Indonesia, research on the implementation of the one roof system, which investigates modern judicial governance after 1998, can be considered picking up where Pompe left off.

The other important writings in Indonesian legal development on the topics of the rule of law and judicial development are by Daniel S. Lev, who analyzes the development of law and legal institutions

after Indonesian independence.9_{Lev’s work precedes that of Pompe,}

and his notes and articles are essential for an understanding of the judiciary and legal society in Indonesia. Lev’s publications cover various areas of law and politics, including the judiciary. His thoughts provide a foundation for many subsequent studies and publications on Indonesian legal politics and the judiciary, including a renowned publication on the development of the Supreme Court by Sebastiaan Pompe. Both Lev and Pompe provide important perspectives of the judiciary in different dimensions—legal, political, and social—which provide us with an understanding of the complexity of the problems experienced by the Indonesian judiciary in transitions before 1998.

After 1998, Indonesia underwent an important transition from an executive system into an open democratic system of government; this included the change in judicial administration introduced as the one roof system. Much literature elaborates on the ups and downs of

the judiciary after 1998.10_{However, compared with the vast literature}

9 See Daniel S. Lev in (a) The Transition to Guided Democracy: Indonesian Politics, 1957–1959 (Jakarta: Equinox Publishing, 2009); (b) Legal Evolution and Political Authority in Indonesia: Selected Essays, The London-Leiden Series on Law, Administration and Development, vol. 4 (The Hague: Kluwer Law International, 2000); and (3) Hukum dan Politik di Indonesia: Kesinambungan dan Perubahan (4th ed.) Pustaka LP3ES Indonesia, 1990, among many others.

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on the Indonesia judiciary prior to 1998, few studies have resulted in comprehensive academic publications on the situation of the Indonesian judiciary and Indonesian court organization following the reform. Nonetheless, articles published by independent organizations, or as collaborations between state institutions and independent organizations, aim to promote and advocate for reform of the judiciary, including the position paper entitled “Menuju Independensi Peradilan” (or “Toward Judicial Independence”), published by the Indonesian

Institute for Independent Judiciary11_{and the Diagnostic Assessment}

of Legal Development in Indonesia.12_{The Supreme Court during the}

period 2005–10 also published a series of blueprints for organization

reform,13_{presenting a comprehensive analysis of problems as well as}

recommendations for judicial organization reform. However, only a small number of publications focus on the specific issue of the one roof system; further, there has been no attempt to evaluate the one roof system since its implementation, to determine whether it has achieved its objectives. Mujahidin, in his dissertation published in 2006, focuses on the one roof system in Indonesia but emphasizes only its legal framework, perhaps partly because the one roof system

only became effective in 2004.14

11 Lembaga Kajian dan Advokasi Independensi Peradilan and Konsorsium Reformasi Hukum Nasional, Menuju Independensi Kekuasaan Kehakiman, ICEL and Lembaga Kajian dan Advokasi Independensi Peradilan (LeIP), Jakarta, 1999.

12 The Diagnostic Assessment of Legal Development in Indonesia was a set of studies conducted by teams led by Ali Budiardjo, Nugroho, Reksodiputro in cooperation with Mochtar, Karuwin & Komar, 1995–97 and presented to the public in March 1997. Concise versions of this study were published in 1999 in Indonesian as Reformasi Hukum di Indonesia (Jakarta: Cyberconsult) and in English as Law Reform in Indonesia (Jakarta: Cyberconsult), 190.

13 Mahkamah Agung RI, Blueprint, 2003; Mahkamah Agung RI, Policy Paper on Judicial Personnel Management Reform (Kertas Kerja Pembaruan Sistem Pembinaan SDM Hakim) (Jakarta: Mahkamah Agung RI, March, 2003); Mahkamah Agung RI, Policy Paper on Permanent Judicial Education System Reform (Kertas Kerja Pembaruan Sistem Pendidikan dan Pelatihan Hakim) (Jakarta: Mahkamah Agung RI, April, 2003); Mahkamah Agung RI, Policy Paper on Court’s Financial Management Reform (Kertas Kerja Pembaruan Sistem Pengelolaan Keuangan Pengadilan) (Jakarta: Mahkamah Agung RI, April, 2003); Mahkamah Agung RI, Academic Draft and Bill on Judicial Commission (Naskah Akademis dan Rancangan Undang-Undang tentang Komisi Yudisial) (Jakarta: Mahkamah Agung RI, April, 2003).

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One of the contemporary debates in Indonesia on the one roof system is around the question of, and in what way, the independence of the judiciary as the goal of the one roof system, has contributed to a more accountable and professional judiciary. This issue mainly arises because of the growing disappointment of the public regarding the performance of the judiciary. More than 14 years after its implementation, various parties, from inside and outside the Supreme Court, acknowledge that problems still occur. Former Chief Justice Bagir Manan and Chief Justice Harifin Tumpa also acknowledge these problems, but both strongly insist on the importance of the one roof system. Moreover, they both mention that the Supreme Court’s organization structure for implementing

the one roof system is a temporary structure.15_{From 2010 until}

the time of writing, the Supreme Court has been embarking on a gradual process of restructuring the Supreme Court. The focus of this reorganization is mainly on court administration functions under the one roof system. On a practical level, the process and decision making regarding reform have been slow because they involve different interests, and require discussions and negotiations with the government. Regardless of the political context, this study may provide benefits for the Supreme Court, by contributing to the policy debate on how the one roof system in the future may look.

The importance of this research is not limited to the Indonesian context. The tension between the principles of independence and management is a day-to-day issue faced by most judicial organizations around the world. Elaine Mak mentions that the constitutional framework for court organization embodies a range of principles that are a collection of classical legal principles that include guarantees for the judiciary in the light of its relationship with other pillars of state, and a set of “new public management” principles that relate to

the “transparent,“ “effective,“ and “efficient“ judicial organization.16

Ditama, 2007).

15 Personal communication with Harifin Tumpa, chief Justice of the Supreme Court 2009–12, in March 2009.

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Further, she mentions different schemes that illustrate the interaction between these types of principles and how it influences the source of legitimacy of court organization (whether based on the classical rule of law, the new public management, or both).

Research on judicial organization, such as the one roof system, addresses two doctrines: the rule of law doctrine and the management doctrine. While the objective of the one roof system is to realize independence of the judiciary, the influence of management principles on the principle of independence of the judiciary—and vice versa—is one of the most important aspects of this research. As an organization, the judiciary is bound to the principles of the rule of law, particularly the principle of independence as the guarantee, as stated in constitutions and legislation. However, it is also influenced by management principles. Quality management views public organization from the perspective of being efficient and effective, to

be socially functional.17

Different countries have come up with different approaches for how to protect the independence of the judiciary from government intervention, while at the same time maintaining professionalism through better court management. Transferring a considerable degree of judicial administration power from the government to judicial councils has been one of the preferred alternatives in countries around the world, starting with France in 1946 and followed by more than 100 countries. However, the introduction of the idea, has seen increased debate in terms of the extent to which a judicial council contributes to a more efficient judiciary while at the same time serving to foster greater independence of the judiciary. In such circumstances, the one roof system provides an interesting case for examination of a different model of judicial governance.

The one roof system is indeed uncommon in the practice of judicial governance. In many countries, the responsibility of court administration is assigned to a special body, or is directly under a

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justice ministry. The design of the one roof system, which integrates the technical and non-technical authorities under the judiciary— specifically under the Supreme Court—provides an example of how the principles of the rule of law and of management interact in the day-to-day decision making and practices of the judiciary. As part of the overall design of the one roof system, the Judicial Commission was established as a ‘balance’ to the strong level of judicial independence, by supervising the conduct of justices and judges in the judiciary. The way in which this institutional arrangement has served its purpose is the main focus of this research.

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1.3 Research Methods

To address the first research question, the objectives of the one roof system first need to be outlined. These objectives are the main indicator for evaluating the one roof system in operation. Besides the objectives, the intention and expectations of the one roof system also provide important context with regard to the objectives, because in the legal framework and the Third Amendment of the 1945

Constitution the statement of the objectives is abstract and thus needs

to be clarified, among other things, by understanding the intention and expectations of the promotion of the one roof system. The objectives and expectations of the one roof system are elaborated in the Constitution and the legal framework, and are outlined in this study’s historical analysis of the establishment of the one roof system during the deliberation process involved in Indonesia’s amendment of the Constitution and laws related to the judiciary. Interviews were also conducted with academics, legislators, and judges involved in the process of enactment of the one roof system, to provide information on the differing motives, expectations, and opinions on the introduction of the one roof system.

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system constitute the main framework used to investigate the implementation of the one roof system. However, the objectives, which are formulated in an abstract manner, need to be translated into aspects that contribute to the achievement of the objectives. Despite the investigation of the objectives, in each of its aspects, discussions and opinions about the one roof system are mapped out. The identification of differing views on the one roof system during its establishment is intended to provide guidelines to identify the most important issues in the implementation of the one roof system. These various views and opinions regarding the benefits and risks of establishing the one roof system may also serve as hypotheses that can be tested when investigating the current situation of the one roof system in practice.

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The application of the evaluation model is informed by empirical data on the practice of the one roof system. This is because, in the final analysis, the members of an organization are those who can best describe the system and how it works. The empirical information was mostly collected during interviews and facilitates elaboration on what has been successful and what remains problematic in the practice of the one roof system, based on its objectives. An understanding of the problems and challenges of the one roof system enabled reflection on the findings and identification of suggestions for the one roof system, using the framework and guidance from the theoretical and conceptual perspectives. The method is outlined in the next subsections.

1.3.1 Data Collecting Method

In many cases, research on the functioning of organizations, particularly from the perspective of management, uses quantitative methods and is concerned with establishing results that can be

generalized.18_{There are different vehicles for obtaining data in}

quantitative research. Surveys and experiments are arguably the main instruments used in quantitative research. However, this research employs a qualitative research approach, which provides a method to explain social experiences in a number of different ways, including by analyzing experiences of individuals or groups, interaction and

communication, accompanied by document collection and analysis.19

A qualitative perspective is more concerned with the selection of units

of investigation, rather than statistical representation.20_{In presenting}

the information, emphasis is placed on understanding what is going on in organizations based on individuals’ interpretations of their

environment, and their own and others’ behavior.21

18 Alan Bryman, Quantity and Quality in Social Research (London: Routledge, 1998), 35.

19 Uwe Flick, Designing Qualitative Research, Los Angeles: Sage, 2009 ix. 20 Erns von Kardoff, “Qualitative Evaluation Research”, in A Companion to Qualitative Research, ed. Uwe Flick et al. (Thousand Oaks, CA: Sage Publications, 2004), 140.

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Qualitative research often faces the problems of subjectivity and

generalization.22_{The criticism regarding subjectivity is often that}

qualitative findings rely too much on the researcher determining what is important and significant, and on a close relationship

between the researcher and study participants.23_{However, objectivity}

in qualitative research, making it free of bias, can be achieved by ensuring that knowledge is reliable, factual, confirmable, and able

to be checked.24_{As a researcher's approach is influenced by their}

personal orientation,25_{the qualitative research approach is taken in}

the current study based on the experience of the researcher, who has been working with the Supreme Court and various judiciary actors

in different judicial reform projects in Indonesia since 2000. 26_To

minimize bias from the personal experiences of the researcher, and to ensure the validity of the findings, this research applied various strategies for deciding on the sample, record keeping, and verbatim transcription of interviews to ensure the interpretation of the data

was consistent and transparent;27_{it also applied data collecting}

methods in addition to interviews to support the findings.28_Further,

the qualitative research paradigm holds that the researcher is an

22 Steinar Kvale, Interviews: An Introduction to Qualitative Research Interviewing (Thousand Oaks, CA: Sage Publications, 1996), 64–6.

23 Kvale, 1996, 405.

24 Steinar Kvale, “Ten Standard Objections to Qualitative Research Interviews,” Journal of Phenomenological Psychology 25 (1994): 147–73, 152.

25 Beloo Mehra, “Bias in Qualitative Research: Voices from an Online Classroom”, Qualitative Report 7 (2002): 1–19.

26 I contributed to the drafting of various publications related to judicial reform in Indonesia, including 1) Mahkamah Agung RI, Blueprint, 2003, 2) Indonesian Institute for Independent Judiciary, A Concept on the Ideal Indonesian Judiciary: Creating Unity of Law and Improving Access to Justice (Indonesian Institute for Independent Judiciary, Jakarta: 2010), 3) Judicial Sector Support Program (JSSP), “Penerapan Penganggaran Berbasis Kinerja pada Mahkamah Agung dan Badan Peradilan di Bawahnya,” (Jakarta: JSSP, 2016), 4) Gregory Churchill, Dian Rosita et al., Learning and Planning Activity for the Judicial Reform Team Office (JRTO) of the Indonesian Supreme Court: Report and Recommendations, (Jakarta: Australia Indonesia Partnership for Justice [AIPJ], 2013).

27 T. Long and M. Johnson, “Reliability and Validity in Qualitative Research,” Clinical Effectiveness in Nursing 4 (2000): 30–7.

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important part of the research.29_{Having the experience of working}

with different actors in the judiciary provided benefits for the researcher in identifying the strategic actors within the Supreme Court.

In qualitative research, the small number of people interviewed often raises questions about whether the findings can be generalized to

other settings.30_{However, the number of subjects necessary depends}

on a study’s purpose.31_{If a researcher can identify appropriate and}

knowledgeable people who are able to explain what they understand about the research problem, then it may not be necessary to interview

a large number of people.32

Following the decision to use a qualitative method, as explained briefly above, interviews were used as an instrument to obtain

information in this research. Steinar Kvale33_{explains that qualitative}

interviews are a useful tool for a researcher to understand the world from the perspective of subjects, to unfold the meaning of people’s experiences, and to reveal their lived world prior to a scientific explanation, by listening to what people share about their world and

how they express their opinions in their own words.34_{In this research,}

the interviews were also used as a way to follow up and investigate in depth problems identified in the documents and statistical data analysis. Further, given that available knowledge regarding the operation of the one roof system at a practical level, from the perspective of the members of the court organization is relatively sparse, gathering information through interviews was considered the most appropriate method for understanding the one roof system.

Semi-structured interviews were conducted to maintain the focus of the research. Therefore, an interview guide was developed to ensure that important issues were covered during the interviews.

29 Mehra, 2002, 1–19. 30 Kvale, 1996, 406. 31 Kvale, 1996, 101–2.

32 Herbert J. Rubin and Irene S. Rubin, Qualitative Interviewing: The Art of Hearing Data, 2nd ed. (Thousand Oaks, CA: Sage Publications, 2005), 71.

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Semi-structured interview guides usually include a sequence of themes to be covered, as well as suggested questions, but at the same time are open to changes in sequence and the form of questions, enabling follow up of the answers given and the stories told by

subjects.35_{The literature review conducted in the second chapter}

provides clear guidance for developing a relatively focused interview guide.

Using unstructured interviews in an organizational study, particularly in a complex organization like Supreme Court, creates challenges in data collection and analysis because the information can also be unstructured and cover a wide range of issues, which may or may not be relevant to the research question. The researcher can lose control over the interview, which may depart from the planned

scope of the research.36_{However, the complexity of Supreme Court is}

also the reason why a structured interview may not be a good choice, because it may pose the risk of anticipating issues that might not be captured or predicted when preparing the interview guideline. Thus, this research applied semi-structured interview by using an interview guide to keep the focus on the important issues, while retaining the possibility to expand or narrow the discussion if interesting themes emerged. The interview guide consisted of an outline of topics to be covered, with suggested questions. The questions could be evaluated, to adjust to the dynamic of the interview interactions, or to the topics

that emerged in the interview.37

The interview guide focused on two main research questions. The interview questions were structured based on the thematic area of evaluation. By implementing this approach, the questions outlined in the guide could contribute to the information needed to respond to the main research questions. It also provided a direction for understanding why such questions arose and how they contribute to the backbone of the argument. In addition to the open questions surrounding each of the aspects in the evaluation, there were also

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questions that developed and were structured around some of the pro and contra arguments for the one roof system. In this way the responses from the informants, when classified, would contribute evidence to the arguments made in this dissertation.

Interviews in this research were conducted face to face, in three rounds. The first round was conducted in April 2016. Its purpose was to understand the background, history, and fundamentals of the one roof system. These interviews provided a basic understanding of the context surrounding the introduction of the one roof system; and most importantly provided an understanding of the objectives and motives regarding the introduction of the one roof system. The second round of interviews was conducted between March and July 2017. The informants were invited to an individual interview lasting 1–3 hours depending on the availability of each informant and the relevance of their knowledge and information for the research. The questions in the interview guide were adjusted according to the expertise and background of each interviewee. After the first and second round of interviews, information was then classified, connected, and analyzed based on the evaluation model. The third round of interviews was conducted from March to August 2018, after reviewing and evaluating the first and second round to determine whether any information needed to be verified or followed up.

In a qualitative interview it is important for the interviewer to achieve rapport with participants to encourage them to participate

in and persist with the interview.38_{Unless an element of rapport can}

be established, resource persons may terminate their participation or

provide superficial responses.39_{Further, understanding the research}

topic is necessary to ensure that interviews can result in in-depth information and data, and allow for verification of the information collected from interviews. In some cases, when the topic of an interview is sensitive—for example, the topic of corruption, ethics, or misconduct—there is a tendency for interviewees to avoid sharing

38 Alan Bryman, Social Research Methods, 4th ed. (Oxford, New York: Oxford University Press, 2012), 218.

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their experiences from the first person perspective. Two approaches were applied in dealing with this situation. The first was to provide

the option of anonymity to the interviewee,40_{as explained further in}

Section 1.3.3; the second was to apply indirect questioning.41_Some

interviewees asked for ‘off-the-record’ sessions during an interview to discuss issues about which they preferred to remain anonymous, but not for the entire interview. For the second approach, rather than drawing out information by directly asking questions, some hypothetical cases were prepared based on simulations of real cases or symptoms identified at an earlier stage. Based on the hypothetical case, comments or reactions were sought from the interviewee. In this way the participant was provided a way to comment on the case without putting them in an uncomfortable situation. For example, the interviewee was presented with a case that was conflicting; or was faced with a dilemma involving two different perspectives. In case they were also reluctant to comment on a hypothetical case, they were invited to discuss the topic in a much more general or abstract way.

1.3.2 Sampling Method

As mentioned in Section 1.3.1, decisions regarding research sampling are vital to determine the credibility of results. This research chose purposive rather than probability sampling. Probability sampling is commonly used in quantitative research in which a sample is selected using random selection so that each unit in the

population has the same chance of being selected.42_{In qualitative}

research the need is for a smaller but focused sample.43_Purposive

sampling can be conducted in a strategic way that is relevant to the

research question.44_{Further, the research question provides guidance}

about particular aspects, which consequently provides direction for identifying particular people or units of analysis that should be sampled.

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With purposive sampling, the choice of the interviewee sample is framed by the purpose of the research, as explained earlier. The purpose of this research in general is to investigate whether or not the one roof system has met its objectives. Therefore, participants were selected based on their understanding, views, or experiences related to the one roof system. The decision was also based on knowledge about

the population, or “universe of units.” 45_{The object of this research,}

the Indonesian Supreme Court, is a relatively large organization, with more than 1500 personnel consisting of Supreme Court judges (justices), judges from subordinate courts, court managers, and court staff. There is also a number of judges and court staff who are not part of the Supreme Court, but are in some way affected by the policies of the Supreme Court in the execution of court administration. Deciding on a sample based on the size of the study population would result in a large sample, which would necessary require more time to complete the research. However, understanding the population is important for understanding different groups within the population and how these groups play a role in the functioning of the one roof system.

This research is not intended as a study of the overall organization of the Supreme Court, or to gain general perceptions of the functioning of the organization. Rather it is focused on the implementation of the one roof system; therefore, not all aspects of the organization of the Supreme Court are relevant to the research. For example, the basic structure of the organization is divided into two parts: the judicial (legal) part, which deals with the function of the Supreme Court as a court of cassation; and the managerial (non-legal) part, which deals with the function of the Supreme Court as the national court administrator. It is clear that the focus of the research is not on the judicial function of the Supreme Court, but on the managerial function. However, in cases were the managerial function affects the Supreme Court’s judicial function, this research also discusses the judicial aspect.

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The sample for this research was carefully chosen to reflect the different functions and roles of organization members. For this purpose, the points of view of different members of the organization and relevant stakeholders were collected. The credibility of qualitative research lies not in the number of interviewees, but in bringing together different points of view to provide a complete picture and

convincing evidence for the development of an argument.46

Since the research centers on the issue of the one roof system, mainly the function of the Supreme Court in conducting the role of court administration, the study focuses on the management group— including decision makers and leadership—of the Supreme Court as the main implementer of the function. Further, the study focuses on the role of judges as managers, because one of the issues that occurs in a professional organization such as the judiciary concerns the dual role of judges as adjudicators and managers, and how this influences the competence and workload of the judges concerned. It should, however, be highlighted that ultimately the one roof system is a system of judicial administration with judges as the actors in the system. Therefore, the judges’ perspective is also at the center of the research.

In qualitative research, sampling involves selecting people to be interviewed. The research gains credibility when interviewees are experienced and have first-hand knowledge about the research

problem.47_{The purpose of this research is to study the one roof}

system as a model of judicial governance, and how within a judicial governance system the rule of law principles and management principles interact. Therefore, deciding on the sample based on professional background and managerial experience became relevant. Moreover, people who were most knowledgeable about the one roof system should be those who worked within the organization, because they had first-hand experience of practical problems relevant to the research questions. In cases where a researcher cannot determine in advance how much someone knows, the sample can involve a person

46 Rubin and Rubin, 2005, 68.

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in an appropriate position.48_{To select a sample based on knowledge,}

I chose interviewees from the management group, as mentioned above, but also considered different areas of responsibilities. To capture the range of issues relating to the one roof system, including the issue of judge administration, resources, and financial administration and supervision, I interviewed people from different units of the organization that were responsible for conducting tasks in those areas. The sample also needed to represent different stages of career, to determine whether different point of views stemming from career level had been covered; therefore interviewees were also selected from the group of judges, leadership group, managers, judge-managers, and court staff. Based on these considerations, the sample representing different backgrounds was as follows:

1. Supreme Court leadership a. chief justice

b. deputy chief justices c. head of chambers 2. judges

a. district court b. appeal court c. Supreme Court

3. judges who also act as managers a. chief of the court

b. manager at the Supreme Court 4. managers (non-judges) a. personnel b. financial c. supervision 5. court staff a. personnel

b. planning and financial c. supervision.

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In addition to the sample of interviewees listed above, selected based on their knowledge and experience in administering and managing the organization, I also decided to interview judges to determine how the one roof system is operating and how well judges are administered and managed; and to examine how the system is operated from the point of view of the main beneficiaries (judges). Another element that contributes to the credibility of qualitative research findings is ensuring that interviewees reflect a variety

of perspectives.49_{By interviewing judges, I expected to gather a}

representation of different points of view of the organization and how the organization provides support for judges to conduct their tasks.

In the Indonesian judiciary, where transfer and promotion are part of the career path of a judge, it is likely that an interviewee currently holding a position dealing with a specific area of responsibility would also be knowledgeable on other issues. For example, a senior judge currently positioned at the first rank of a managerial post will also have experience and knowledge as a district court judge, appeal judge, or chief of a court. Therefore interviewees might provide knowledge on a range of aspects considered relevant to the topic of the research. A discussion of the administration of justice cannot be separated from the interaction and communication process between the Supreme Court and the other pillars of the state, namely the executive and the legislature. This is the principle difference between public and private sector organizations. Public sector organizations, including the judiciary, have certain dependencies on political processes—among others, in the area of legislation, budget determination, and selection of managers. To understand the dynamic and how this affects the functioning of the one roof system, it was also necessary to interview participants from the government and parliament on the issue of law and policymaking, administration of personnel, and finances. The selection of these interviewees was based on their experience and knowledge regarding issues of law and

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policymaking, and the administration of budget and personnel of the judiciary. Moreover, the establishment of the one roof system is also inseparable from the introduction of the Judicial Commission. The commission was established with the expectation of balancing the greater independency of the judiciary and working together with the Supreme Court to conduct the supervision function of judges. Therefore, it was also important to understand the functioning of the one roof system, in particular regarding the aspect of supervision and other related aspects, from the perspective of the Judicial Commission. For this purpose, the relevant sample included representatives from the following institutions:

1. staff of the Ministry of National Planning and Development (BAPPENAS), specifically from the Directorate of Law and Legislation, which is responsible for judicial planning and budgeting

2. members or former members of the House of Representatives (parliament), specifically from the Law Commission

3. members or former members of the Judicial Commission. I also interviewed people who were involved in the process of judicial reform in Indonesia, such as people from civil society organizations, and academics. These worked together with the Supreme Court’s leadership and managers in the development of

new policy and systems in the court organization.50_{Therefore, it}

was important to gather knowledge of the dynamics of the judicial organization based on members’ experiences and perspectives.

In all, 33 people were interviewed for this research, not including personal communications that I had during interactions with judges and other judicial actors. Each participant was chosen carefully

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based on the sample considerations outlined above. This number may be relatively small compared with similar research, which has involved 50–100 interviewees, but qualitative samples are drawn to reflect the purpose of the study and the skill of the interviewer

also has an effect on the quality of data.51_{Therefore, the sample size}

may become irrelevant because the value of data is measured by

its quality.52_{Qualitative research must build convincing arguments}

based on richness, complexity, and detailed information, rather than

on numbers or statistical considerations.53_{For this research, I was}

given access to important key informants such as former chief justices, deputy chief justices, first rank officers, managers of the Supreme Court, and chiefs of courts. I also interviewed judges who had specific experience in some of the cases that were relevant to evaluation of the system; for example, a judge who received disciplinary sanctions from the Supreme Court, and a judge and former judge who were involved in important decision-making processes within the Supreme Court. Some of the informants also had rich backgrounds that made them competent to share their experiences from different perspectives and provide different types of information. During interview, most informants were open and willing to share in-depth information, which added to the richness of data and information in this research. Some interviewees were also willing to provide special access to particular documents and data to strengthen their arguments, or to be used as supporting evidence and references. These documents included statistical data collected by the Supreme Court, reports, and minutes of meetings.

1.3.3 Ethical Issues

In research, ethical issues may arise throughout the research process, from deciding the topic of the research, designing, analysis,

51 Jeniffer Mason, “Sample Size and Saturation in PhD Studies Using Qualitative Interviews.” Forum: Qualitative Social Research 11 (2010): art. 8. Access in 20 June 2017 DOI: http://dx.doi.org/10.17169/fqs-11.3.1428.

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to reporting.54_{From the beginning of a study, the aim must be clearly}

decided to ensure that the research will contribute to the situation

investigated and bring no harm to participants.55_{In this research,}

the role of participants/interviewees was to share knowledge based on their experience. Information on the topic, general purpose, and level of participation of interviewees needs to be explained from the beginning of the process, and should be part of the informed consent of interviewees.

Aside from the overall purpose of the research, the informed consent of interviewees was based on information on the main features of the design, as well as the possible risks and benefits for

interviewees.56_{In organizational research, the information collected}

can be sensitive from the perspective of subjects, particularly with regard to their position or career. They might also be worried that the information may be used to inform other members of the organization, which might harm the individual or their professional relationships. Ethical issues are faced in various types of research including organizational research. In organizational research, there are instances where the researcher must be sensitive to the ethical and political dimensions of the topic, particularly if facing suspicion from organization members regarding the ‘true’ aims of the research; even if access has been formally negotiated with the organization’s

leadership.57

In research focusing on a judicial organization such as the Supreme Court, sensitivity to the cultural and political dimensions of the organization is required. At this point informed consent and choice of disclosure or confidentiality become critical to ensure mutual trust between researcher and interviewee. Certain interviewees who have in-depth knowledge of an organization may only share their knowledge if their identity remains confidential. In this research, several interviewees asked to remain anonymous

54 Kvale, 1996, 110.

55 Kvale, 1996, 110; Bryman, 2012, 135. 56 Kvale, 1996, 112.

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to give them flexibility and freedom to share information that was sensitive for them or for other members of the organization. However, anonymity has some downsides for the research and may present methodological problems: for example, how can the results be verified by other researchers if no one knows who participated in

the study?58_{Therefore, in this research, interviewees were informed}

that they may choose to disclose their identity or remain anonymous. If an interviewee decided at the beginning of the interview to disclose their identity, but then changed their mind when explaining certain issues, they could choose not to provide full disclosure. The interviewees were also informed in advance about the context and objective of the research, and could voluntarily agree to participate

in such circumstances.59

With regard to the possibility of publishing private or confidential data and information potentially recognizable to others, it is unavoidable that subjects need to agree to the release of identifiable information. In Indonesia, the Law No. 14/2008 on

Transparency of Public Information provides clear and detailed guidance

on a wide range of information that should be proactively published or disclosed upon request, and of a mechanism for how to publish such information. This was an advantage in this research because most information relevant to the research was classified as public information. However, in cases where confidentiality of a document provided during this research is regulated under the law, consideration must be given to existing laws and regulations, to ensure that privacy rights and confidentiality remain protected.

The issues discussed here were included in the written informed consent. Both the researcher and interviewees signed the informed consent. The informed consent served as a mutual contract that explained the purpose of the research, and the procedure being conducted to gather the information and data, including how long the record of information would be stored, who would have access and how anonymity would be guaranteed, as well as whether the

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participant would be provided with the results.60_{As part of the}

ethical requirements for this research, any information obtained in interviews, including documents, was kept in strict confidence and stored in a secure location. The typed interview transcripts and documents, if in the form of electronic data, were kept in a personal file space protected by a password and held on a private server owned by the researcher.

N

1.4 Structure of the Thesis

In general, the structure of this thesis follows the approach taken in this research, which sequentially consists of introduction and method; conceptual and theoretical framework; historical overview; evaluation; and conclusion.

Following the introduction and method explained in Chapter 1, concepts and theoretical perspectives that form part of the discussion of the one roof system in Indonesia are presented in Chapter 2. They provide a framework for understanding judicial governance and judicial organization, as well as the principles that interact within it. The first section of Chapter 2 discusses different models of judicial governance and their consequences for judges and judicial organizations. The next section discusses the transformation in court organization, including its characteristics, and contemporary issues within courts as modern organizations. In this section, the approach to quality management in general, and how it is applied in judicial organization are elaborated. This section provides an understanding of the debate and contemporary issues around judicial organization, which are useful for shedding light on the debate and discourse around judicial organization in Indonesia. At the end of the chapter, a general model of evaluation is developed based on the extraction of elements and principles from the concepts and theoretical framework.

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Chapter 3 provides the background and basic understanding of the one roof system by providing a historical overview that tracks the origins of the idea of the one roof system in the Indonesian judiciary. An explanation of the background and context of the one roof system is an important starting point to understand and identify the objectives and intentions of the one roof system. This chapter also elaborates on the features of the one roof system, which consist of the organizational arrangement and governance within the Supreme Court to perform the function of judicial administration; and the supporting and opposing arguments about the introduction of the one roof system. Based on the information collected in this chapter, the evaluation model is contextualized to the study of judicial organization in Indonesia. The objective, features, and arguments about the one roof system serve as a framework to evaluate its implementation.

A description of the one roof system in practice is presented in Chapter 4. This chapter forms the core of this dissertation, in which the two research questions are dealt with. Based on the objectives and attributes of the one roof system presented in Chapter 3, the analysis investigating whether the objective has been achieved, what are the successful areas, and the areas that need improvement, are outlined. The second part of this chapter suggests improvements to the one roof system, already identified in the earlier part of Chapter 3, from the perspective of quality management as well as the limits and possibilities of adapting these principles in a judicial organization, in specific arrangements such as the one roof system.

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c h a p t e r i i

Judicial Governance

and Organization in the

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In the past, discussions about the judiciary were often dominated by those around attempts to pursue independence of the judiciary and to analyze different factors that affect the independence of the judiciary, such as the influence of the executive or legislation. From the classical perspective of the rule of law, there are principles that frame discussions of the study of court performance around the world; these are the principles of independence, and checks and balances.

However, there are also a great number of studies that investigate

court operation from an organizational perspective.1_{Studies of court}

organization are also inspired by the changing characteristics of court organization, from a simple organization involving a collection of judges and their support system, to a more a complex organization with a hierarchy and division of labor. From the organizational perspective, an organization can be viewed as a ‘processing capacity,’

Judicial governance in Indonesia: Judicial independence under the One Roof System

Tilburg University

Judicial governance in Indonesia

Rositawati, Dian

JUDICIAL GOVERNANCE

IN INDONESIA

D I A N

R O S I TA W AT I

JUDICIAL GOVERNANCE

IN INDONESIA

Acknowledgment

Abbreviations and Acronyms

Table of Contents

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N

N

Judicial Governance

and Organization in the